Sari Swears Podcast: Why You Need the "Duh Factor" at Trial

I’m seeing this a lot lately, so let me say it straight: If your case feels too simple, you’re probably FINALLY getting it right.

You keep trying to add more: more detail, more explanation, more persuasion.

But jurors don’t need more.

They need clarity.

When you hit the point where someone hears your case and thinks, “Well… duh,” that’s the sweet spot.

Because “duh” means:

It’s common sense
It’s easy to understand
It’s hard to argue with

And most importantly, it triggers the question you want:

“If it’s so obvious… why didn’t they do it?”

That’s where your power is.

Not in being clever.

Not in making it complex.

In making it undeniable.

So if part of you is thinking, “This feels too basic…”

Good. Lean in.

Love,
Sari

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“If your case makes someone think, ‘Well, duh,’ that’s when you know you’ve got it right. It means it’s clear, it’s common sense, and it’s something no one can argue with. That’s where your power is — not in being clever, but in being undeniable.”
sari de la motte

Transcription

Sari de la Motte:

Here's what I want to say is that when you get the, "Well, duh," which I call the "Duh" factor, that means that you've got it right. You're listening to Sari swear on the Sari Swears podcast. Well, welcome everyone to another episode of Sari Swears. Sari de la Motte here with you today. And before we get going, I'm going to remind you to subscribe to the podcast. Thank you very much. And if you haven't already, give us a review wherever you do listen to the podcast because this is going to get us into the hands of more, into the hands, into the ears and perhaps eyes of more people. So hope you're doing well today. And we are going to be talking about why you need the "Duh" factor in trial because I've been talking a lot about this with my members lately back in the crew and I'm always reminding them to KISS. No, not kiss each other, but KISS as in Keep It Simple Smart-ass. No, I think it's Stupid, but I don't want to call you stupid because you're not stupid.

So Keep It Simple Smart-ass. Now, I think we've all heard that before and I think we all know why we should keep it simple. Obviously, when we're in trial and we are dealing with the topics that we're dealing with, we have often lived them for sometimes years where jurors are hearing about it for the first time. So we assume because we've been talking about it and thinking about it for all this time, that they'll just get what we mean and they don't. Remember, there was a time when you had to learn, if I'm working with you, that I had to learn about your case and about the things that you're talking about and all of the medical jargon, let's say, if we're talking about a medical malpractice case. So when we keep things simple, we make things easier to understand, and that's essential.

If jurors don't understand what we're talking about, we're most likely going to get a defense verdict. They need to understand what we're talking about. And two, we make it easier to remember. What we tend to do instead of keeping it simple is, I see this all the time, we put everything in, let's say, to our opening and our closing because we're so worried that whatever we decide not to put in, that is going to be the one thing that was going to clinch the case. So we put it all in, which overwhelms our jurors for sure. We also don't define terms because again, we've lived with it for so long, we assume that others get it. In fact, when I'm working with my clients and they're talking about things, one, if you've listened to my podcast for a while, you know that in the story section, I say, if you have to stop at any time and define a term or describe what something is, that should be in your teaching section. Your story should stay clean so you don't have to stop and keep explaining things.

But in many cases, we don't even explain things to begin with. I can't tell you how many times y'all will just rattle off a phrase or a term and although if I'm working with you, I understand what it is, most jurors would not have any idea what you're talking about. Not to mention the legalese that I hear quite often from you all, just legal terms, plaintiff, defendant, damages, things that jurors don't necessarily have familiarity with. But again, even more so since we live in this world, we assume that they know what they mean, we want to avoid that. And we have long-ass rambling openings, partly because of what I just said, we try to shove it all in, but we put everything in there and it makes everything complicated. I just came out of a voir dire circle with my crew and one of my favorite members, Rob, nearly every time that we have one of these sessions when I say, "What are y'all taking from this session?", he will say, "Yet you need to keep it simple and when you think you've got it simple, you can even make it more simple."

So today is all about the "Duh" factor. We need to make things simple. We do that by making things clearer. We do that by making things short. We do that by using common language, and we use it by having easy... So we use it. We make things simple by having an easy to follow structure. Those are all things that we can do. But the "Duh" factor is something that I really want to talk about today because it's come up enough that you all are thinking that if you have it simple, that you've somehow done it wrong. So here's what I mean. Oftentimes when I'm working with clients or members of my crew and we're creating funnels or we're putting the teaching section together of the opening statement, it's always complex. I wouldn't say always. It's often complex, but sometimes it's simple and it's perfect.

But what I will hear from the people I'm working with is, "I just thought that maybe this was too simple." Here's what I want to say, is that when you get the, "Well, duh," which I call the "Duh" factor, that means that you've got it right. So I see you again coming between two extremes. On one extreme, you are really working hard. That was one of the other things I said in today's voir dire circle with one of the people I was working with. I said, "I love the voir dire." He had a really beautiful, resonant conversation going in the voir dire about those of us who ever had a favorite teacher. And it was a case that involved a teacher, it's beautiful, I loved what he was doing. And my only comment to him about his voir dire in general was, "You're still working too hard. You're still, instead of saying, 'Tell me what you loved about her,' for example, with the teacher example, it's, 'Tell me about your experience with this teacher.'"

We're still trying to have this speechy language because we think that's what it takes when you are working with people instead of just being yourself. But anyways, we tend to have way too complex or way too clever or working way too hard, or we get it right by being simple and then we think it's too simple. So for example, let's say you're trying to find your principles in voir dire and you're working with a hospital case. So for example, we had an anesthesiology case today and maybe your principle is if a hospital does not monitor patients while under anesthesia, patients can die. Now, as I say that to you, if you have the reaction of, "Well, duh," we know we've got it right, there's something about y'all and needing things to be hard and I don't understand why that is. You need everything...

I mean, hard work, as we've talked about in the podcast before, is something like a holy grail. It's like, if it's not hard, then it's not real, or something to that effect. And here I see it bleeding into, as you're creating your content, if it's not hard, if it's not complex, if it was too easy to come up with, then somehow it's not real. I think it's because you spend so much time thinking through the strategy and all of the crazy-ass shit that the defense is going to pull and how you need to work around that and you do have beautiful, beautiful legal brains. I'm in love with your brains, I love the way that you think, except in this one area where you keep trying to make it hard. It should be, "Well, duh." You know that you've got it right when you share it with someone, or even you think to yourself and they say, or you think, "Well, duh," now we've got it right.

I mean, think about our jurors. They don't want to be there. They're hostages. They don't know why they're there. They don't know what they're supposed to do, they don't know how to do it. And the last thing that we want to do with and for them is to make this even more difficult. Everything that we present to them should be a "Well, duh." They should be sitting there and thinking, "Why are we even here? This is such a no-brainer." And I know you think, "Well, I have to be persuasive and I have to really have this really slick argument that's going to win." In most plaintiff cases, you don't need that. I mean it. And if you think you do need that, you have not done your work yet. The job that I see that's the hardest for all of you, and it's something that when people work with me, they're like, "Oh my God, Sari. Working with you, you make it so simple," but you can do this too, is that you're trying to make it complex.

For our jurors, it should be, "Well, duh." And that's how we get them to find us. Now, is it an easy process to get there? No. If there's anything difficult, that's the difficult part, is to simplify it, get all the information, figure out what's really important and so on and so forth. But I wouldn't say that the "Duh" factor is difficult. When you think logically about your case, when you come into a voir dire circle in the membership, if you're a member and you're listening to this, and I say, "Isn't it just this?" I didn't have to spend months and months and years and years with your case. To me, as I hear the facts, it's just "Duh," it's this, right? And that's the piece that I really want you to start playing with.

It's like what Rick Friedman says when he says, when you're creating a rule in your cases, that the best rules are the ones that even the defense couldn't argue it. They have to agree with it, or they have to look stupid if they disagree with it. That's what I'm talking about with the "Duh" factor is that it should be, "Well, of course, that's how it is and it looks stupid if people don't agree with it." That's when we really know we have the defense on the hook because they can't talk their way around it. If you're a longtime listener, you've probably heard me say practice makes progress and what better way to practice than with a fellow group of trial attorneys in person and with me. Our 2-day Command, the Courtroom Masterclass sessions put the H2H Method into action and I'm there every step of the way with live coaching and feedback and finish, mama, fierceness. And don't just take my word for it. Here's what PI Attorney Sean had to say about our 2-day Masterclass.

Sean :

My biggest takeaway is that I now have a new approach as to how I'm going to enter the courtroom. It's a new energy, a new spirit, and it really gets me excited because that's actually the more fun part of what we do. And I'm looking forward to taking advantage of everything that I learned here.

Sari de la Motte:

Now, seats are limited. These are small group, high impact courtroom sessions, not an auditorium full of board attorneys and dull lectures. If you want to change the way you go to trial and turn your practice into progress, visit sariswears.com/masterclass to register for a 2026 class today. That's sariswears.com/masterclass. So for example, let's take a look at the teaching section. So the teaching section in my opening template is the second part. So we have our hook, which is how we hook the audience and make them want to listen to what we're about to say. And my openings are always 30 minutes or less. Why? Because it should be "Well, duh." It doesn't take that long to describe something that's a "Well, duh," which all plaintiff cases are if you put in the work. Okay. So the second part after our hook is the teaching section. And here's where we're going to show the jury, well, we're going to not show, it's tell and show and so show and tell.

We're going to tell the jury what should have happened. And when we get to the third part in the template, which is the defendant's story, we're going to show them what happened. So we get to contrast the right way to do it and then the way that defense did it. So in our teaching section, we want to first, what we call front load danger. So before you teach about the right way to do the thing that happened in your case, you have to really put the danger of your case front and center. Remember, I always talk about that there are two questions that you should answer or you must answer as a plaintiff attorney. The first question is, how could this have been avoided? And the second question is how can money help?

So when we're talking about, we're going to go right now, front and center, I put it right up at the top. Here's how this could have been avoided, but we need to spend some time on the thing that we're trying to avoid, otherwise we don't make it real. So we need to front load the danger. Most births go just fine, but sometimes a baby can get stuck in the birth canal and that is very dangerous because that can cut off the oxygen supply. And if the baby is allowed to remain in the birth canal without that oxygen, they can suffer a brain injury or even die. It's not long. There's an example of front loading the danger. And then I'm going to go and I'm going to say, because this is a known danger, there are three things that doctors must do or are trained to do in that situation.

For example, trucking. So I might say semi-trucks or 18 wheelers or tractor trailers, depending on where you live in the country, it's different everywhere, can cause immense harm, primarily due to their size and weight. The average size of an 18-wheeler... And I might go on and describe that, right? It's this long and it weighs this many pounds compared to a passenger car that is this big and weighs this many pounds. So you can imagine when a semi-truck is on the road and it drives unsafely, it can cause immense harm. Great. I've front loaded the danger. Therefore, there are three things that a trucking company must do before they hire a driver and put them on the road. Or maybe it's, they must do three things before they put drivers on the road, because I don't want to make it just about hiring. And now three things could be something as simple as they need to investigate.

And what do I mean by that? They need to look at this driver's history. Do they have any crashes? Do they have any tickets for speeding? What is their driving history? Do they have the right kind of license? What training have they had, right? Second, they need to train their drivers on their specific routes, their specific policies, and how to drive safely. They can't just assume that they know. And three, they need to supervise their drivers. Maybe they go out with their new drivers for the first couple of shifts. Maybe they drive every month or so just to keep on supervising, because then if they see anything, then they can correct it. So investigate, train, supervise. Duh. Again, no one's going to look at that and say, "Well, that's too much to ask of a trucking company." I mean, maybe. This is why I keep saying for plaintiff attorneys that your job is actually much easier than you think it is.

Why? Because you stand on the side of the right. Most human beings believe that you shouldn't put dangerous truck drivers on the road. Most human beings believe that family and hobbies and what you do for work are important things. Most people believe that your brain is important and that you lose a lot if somebody damages it. You guys and gals, you stand on the side of the right. And so you're working way too hard. When you come up with your teaching section, it should be, "Well, duh, of course a trucking company would do those things," right? Now, a "Duh" factor, the "Duh" factor, which again, I'm just saying is the factor where you know you've got it right when people are like, "Well, duh," it works in your favor in a few ways. So the first way it works in your favor is, "Duh," people say, "Well, duh," because it's common sense. Now, this really works in your favor.

Common sense. What does that word have in it? Common. We all think like that, i.e., any of us in that position would have done those things because they're easy to do and they're common sense things to do. So we really want to have the "Duh" factor in our case because it brings up the common sense factor and common means we all, most of us. Again, you guys all stand on the side of the right. Most of the time, the defense has to go through all kinds of circles and knots to make sense of what they did and didn't do. It's crazy, y'all, of what they did or what they didn't do. Two, common sense in most people's brains and the majority of people's brains, probably in everybody's brain, equals easy. So if that's a common sense thing to do, most of the time common sense equals easy. Not all the time I give you, but most of the time it does.

Number three, "Duh" automatically equals something you do. Duh, of course they should do that. And if they didn't do it automatically, if you have the "Duh" factor in your case, it automatically brings up the question, well, why not? What was the motive here? It gets jurors thinking about that because it seems so clear that they would do this. Why wouldn't they do that? Which often works in your cases. So how do you get to the "Duh" factor in your case? So first thing, think super basic in your case. So for example, we had a case, I think I talked about this in the book, where we were creating our teaching section. No, we were actually working with voir dire. And I asked the question of this attorney. I said, "Well, what should the doctor have done?" So as we're creating some voir dire, she said, "The doctor should have referred the patient to a Mohs surgeon." And so Mohs surgeon is a surgeon who's also trained as a pathologist.

So they can go in when they're going at hard to reach places like the inner ear, which happened to be this one or the ear, and they can take tissue and then they can immediately look at it under a microscope to see if there's cancer, if they got all the cancer and they keep going back and forth, back and forth, and that way they are guaranteed to have gotten it all. Now, we couldn't expect the jurors to tell us that their expectations in this case would be that a doctor would send the patient to see a Mohs surgeon. But what we could expect the jurors to do, the "Duh" factor, is that a doctor should always choose the safest option for their patient or the option with the best result in this case. And we could create a voir dire question around that. So think super basic, right?

For a bicycling case, if you have a bicycling case and you're asking your jurors, how does a person stay safe while on a bicycle? I don't know why you would ever do this. This is a bad example because normally we don't want to put the jurors in the role of the plaintiff if the plaintiff in fact was the bicyclist here. But one is you would know how to ride a bike before you got on one. Two is you would wear a helmet and three is you would stay off busy roads. My point is that what you will do, if I say, "Okay, give me the top three ways that a person can ride a bike safely," is you will go and you will use legalese and talk about certain types of helmets. And you'll write a manual on how to ride the bike and you will give me maps. You're working too hard.

It's really simple. Know how to do it before you get on it, wear the right safety equipment and stay away from cars. Duh. So that's the thing. You have to think super, super simple. If you were explaining this to a five-year-old, what are the three steps to avoid this? So in medical malpractice cases, you'll get in your head about it. You'll be like, "Well, the doctor should have medical, medical, medical terminology, and then they should have da, da, da, da." And I'm like, "Aren't you just saying that they should have monitored, medicated and something else?" And they're like, "Oh yeah." Simplify it. Take whatever you're trying to say and say, "What's one word or a two-word phrase that would capture this?" Number two, how do you get the "Duh" factor? Ask other people. We continue to say here at H2H, collaborate, collaborate, collaborate. When you're in your own head and you're working with your own case and you're the only one that has eyes on it for months and months and months, and I'm not even talking...

Yes, you can do this with your people in your firm, but I'm talking about just other people who've never even heard about it. Your family, your kids, they will help you and say, "Here's what the doctor should have done, but how can I say this simply? Can you give me one word for each of these things or phrases that come to mind?" They will give you some of the best shit. And third, don't overthink it, which is what we started with. "But that's too basic." No, it isn't. We want to make it common sense, easy, and hopefully with a profit motive if it wasn't done, right? So they're thinking about that. So today's episode is all about, yes, to keep things simple, but what I've seen is that sometimes when you do keep it simple, you think it's too simple. And I'm saying in most cases, that's not true. It should feel like, "Well, duh," so that the jurors then start thinking, "Well, if this is such common sense, why wouldn't they do it?" And it almost always leads back to money.

Well, I hope that's helpful. Talk to you next week. Thank you for listening to the very end of this episode, A+. I'm going to ask you to subscribe to the podcast, whether you're one of the weirdos that like to watch it on YouTube or you just listen, make sure you hit that subscribe button. It helps the podcast grow and let other people find me y'all, but don't stop there. Be sure to leave me a five-star review on Apple Podcasts or wherever you listen. We want this podcast to reach as many ears and eyes as possible. Thanks again for listening and we'll see you next time. Bye-bye everybody.